## Facts

- Robert Colavito, a Florida resident with end-stage renal disease, was the intended recipient of kidneys from his friend, Peter Lucia, who died at a New York hospital.
- Lucia’s widow authorized donation of Lucia’s kidney(s) to Colavito through the New York Organ Donor Network (NYODN).
- NYODN sent Lucia’s left kidney to a Miami hospital for transplant into Colavito; the right kidney remained in New York.
- During surgical preparation, Colavito’s surgeon found an aneurysm in the left kidney’s renal artery, rendering it unsuitable for transplantation.
- The surgeon immediately requested the second kidney, but NYODN had already allocated it to another recipient and it was being implanted.
- Medical testing indicated Lucia’s kidneys were immunologically incompatible with Colavito, meaning they could not be successfully transplanted; Colavito did not offer competent evidence to create a factual dispute on compatibility.
- Colavito sued for fraud, conversion, and violations of New York Public Health Law Articles 43 and 43-A; the fraud claim had already been dismissed and affirmed on appeal before the decision summarized here.

## Issues

1. Whether an intended recipient of a directed organ donation has a legally cognizable possessory interest sufficient to sue for conversion when the organ is medically unsuitable or immunologically incompatible.
2. Whether an intended recipient may bring (or be within the protected class for) an implied private right of action under New York Public Health Law Articles 43 and 43-A when the organ is immunologically incompatible and not medically usable by that recipient.
3. Whether the summary-judgment record conclusively established incompatibility such that no triable issue existed on any claimed right to the organs.

## Decision

- The Second Circuit affirmed summary judgment for defendants on the remaining conversion and Public Health Law claims.
- Applying controlling New York law as clarified by the state’s highest court, the court held any recipient interest in a directed donation exists only if the organ is medically suitable for that recipient.
- Because the undisputed record showed Lucia’s kidneys were immunologically incompatible and therefore unusable by Colavito, Colavito had no cognizable right to the organs.
- Without a cognizable possessory interest, the conversion claim failed as a matter of law.
- Because Colavito was not a statutory “donee” when he could not use the organ, he lacked any private cause of action under Articles 43 and 43-A on these facts.

## Legal Principles

- Under New York law, any property-like or legally protectable interest of an intended recipient in a directed anatomical gift depends on the organ being medically suitable for transplantation into that recipient.
- Conversion requires a cognizable ownership or possessory interest; a directed organ recipient cannot satisfy that element when the organ is immunologically incompatible and medically unusable.
- Any implied private right of action under New York Public Health Law Articles 43 and 43-A, if available at all, is limited to persons who qualify as “donees,” which excludes an intended recipient who does not need and cannot medically use the donated organ.

## Conclusion

The court affirmed dismissal because the intended recipient could not establish any legally cognizable possessory or statutory interest in the donated kidneys where the undisputed evidence showed the organs were immunologically incompatible and medically unusable for him, defeating both conversion and Public Health Law claims.


Colavito v. N.Y. Organ Donor Network, Inc., 486 F.3d 78 (2d Cir. 2007)